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alternatives
IDC Secretariat
Level 1, 112 LangridgeStreet
Melbourne Victoria 3066
Australia
Email: info@idcoalition.org
Website: www.idcoalition.org
International Detention Coalition, 2015
ISBN Paperback: 978-0-9871129-8-9
ISBN PDF version: 978-0-9871129-9-6
Published by the International Detention Coalition
Melbourne, Australia
Recommended citation: Sampson, R., Chew, V., Mitchell, G.,
and Bowring, L. There Are Alternatives: A Handbook for
Preventing Unnecessary Immigration Detention (Revised),
(Melbourne: International Detention Coalition, 2015).
Design and layout by Haydn Jones Communication Design
The views expressed in this document are those
of the authors.
This report is available online at http://www.idcoalition.org
Acknowledgements
The revised edition of this Handbook was written by Dr. Robyn Sampson of the
Swinburne Institute for Social Research at Swinburne University of Technology as well
as Vivienne Chew, Grant Mitchell and Lucy Bowring of the International Detention
Coalition (IDC). Research for this revised edition was undertaken by Adele Cubbitt, Elba
Coria Marquez, Gisele Bonnici, Ben Lewis, Jem Stevens, Vanessa Martinez, Leeanne
Torpey, Libby Zerna, Katherine Wright, Caroline Stephens, Athena Rogers, Jocelyne
Cardona, Ahmed Correa, Beth Edgoose, Danielle Grigsby, Shaista Kiran, Thais Pinheiro,
Catherine Stubberfield, Natasha Warchalok and Rosario Rizzo Lara.
The IDC would like to express gratitude to all the interviewees who made time in their
busy schedules to contribute to this research.
The IDC gratefully acknowledges the financial support of the Open Society Foundation,
Oak Foundation, Ford Foundation, Planet Wheeler Foundation, CAMMINA, and AVINA,
which made this Revised Edition possible.
The first edition of this Handbook was a collaboration with the former La Trobe Refugee
Research Centre of La Trobe University in Melbourne, Australia. The original research
was undertaken by Robyn Sampson as part of her doctoral studies, which were made
possible by a La Trobe University Post Graduate Award. Her work on the revised edition
was made possible by a grant of the Emerging Research Priorities scheme of Swinburne
University of Technology.
We would like to thank the former and current members of the International Detention
Coalition Advisory Group and other IDC members for their support and comments on
an earlier draft of this report.
Table of Contents
PrefaceI
Executive summary
II
Key findings
1.
Introduction
16
18
22
5.
Minimum standards
27
6.
35
7. Case management
47
54
8. Placement options
59
63
9. Conclusion
75
77
Glossary
78
81
Endnotes
85
List of Boxes
Box 1.
19
Box 2.
20
Box 3.
Box 4.
Age assessments
23
Box 5.
24
Box 6.
Appointment of a guardian
26
Box 7.
26
Box 8.
29
Box 9.
30
21
34
37
39
41
Box 14. Identifying individuals who do not need to be detained - Hong Kong
45
Box 15. Case management in the migration context - Two case studies
51
52
Box 17.
54
55
Box 19. Options for those who cannot be deported - Various countries
58
58
62
64
68
69
70
72
Box 27. Detention conditions that respect dignity and well-being - Sweden
74
List of Figures
Figure 1: The Revised CAP model - Community Assessment and Placement
16
36
40
49
Preface
Whats new in the revised edition?
The International Detention Coalition first published There Are Alternatives in 2011. This revised
edition updates and expands the original work using the findings from a new piece of research
and the insights and expertise accrued in the four years since the first Handbook was launched.
Begun in 2013, the new research focused on 20 additional countries. It sought to identify alternatives in a wider range of countries including those experiencing transit migration, those hosting
large populations of refugees, asylum seekers, stateless persons or irregular migrants, and/or
those with limited resources available to manage such populations. Seventy-one participants
were interviewed from government, non-government organisations and international bodies.
This Revised Edition contains a number of additions including:
A Revised Community Assessment and Placement (CAP) Model. While the core elements
of the CAP Model remain the same, the model has been redesigned to provide a clearer
indication of overarching principles and standards, and the key processes of identification
and decision-making, case management and placement.
New and updated country case studies based on further research. New additions expand
our knowledge of alternatives in countries experiencing transit migration, large numbers of
irregular migrants and/or those with limited resources available for migration management.
Our approach
This Handbook is written from the perspective that in developing strong migration governance
systems, States should exercise their authority at international borders in line with their human
rights obligations. In particular, they should seek to govern borders in a way that:
Treats all asylum seekers, refugees and migrants humanely and in compliance with international and national law
Executive summary
Introduction
This Handbook was written in response to
the growing interest of governments, civil
society and other stakeholders in finding
reliable, cost-effective and humane ways
of managing asylum seekers, refugees and
migrants outside of detention. Immigration
detention is a growing phenomenon as governments strive to regulate unwanted crossborder migration. Detention capacity continues
to expand despite well-established concerns
that it interferes with human rights, harms
health and wellbeing and causes unnecessary human suffering. Further, detention is an
expensive policy that is difficult to implement
and regularly fails to fulfil its objectives.
Over the past five years, the International
Detention Coalition (IDC) has undertaken a
program of research to identify and describe
alternatives to immigration detention (alternatives). This Handbook collates the findings
of this research to offer governments a way of
moving forward with this difficult area of policy.
The Handbook works to instrumentalise protections enshrined in international law and to
strengthen systems so that:
II
Benefits of alternatives
The research has identified several benefits
in restricting the application of detention
and prioritising community-based management options. The key benefits are that:
Alternatives are more affordable than
detention
Alternatives have been shown to be up
to 80% cheaper than detention. In the
majority of cases, detention is significantly
more expensive than alternatives. Alternatives have much lower operation costs than
detention, increase independent departures
(compared to deportations) and avoid litigation and compensation claims resulting from
wrongful detention or harmful impacts.
Alternatives are more humane
Alternatives are better placed to uphold the
rights of asylum seekers, refugees, stateless
persons, irregular migrants and other migrants.
They can avoid the harms of detention, reduce
exposure to overcrowding and long-term
detention, and enable greater access to
programs that support health and welfare.
Effective management in the community is
also more likely to uphold fundamental civil,
political, economic, social and cultural rights,
thereby contributing to improved individual
wellbeing and self-sufficiency. This ensures
Alternatives
Cost less than detention
resolution processes
processes
III
IV
Legal obligations
Identity, health and security checks
Vulnerability
Individual case factors
Community context
Minimum standards
The second principle underpinning alternatives is minimum standards. There are a number
of minimum standards which States must
respect and uphold for all individuals, regardless of legal status. These minimum standards
also help to ensure the proper functioning of
migration governance systems and the effectiveness of alternatives. Without minimum
standards in place, alternatives are less likely
to achieve desired rates of compliance, case
resolution and respect for human rights.
VI
Placement options
There are various placement options available
to the State in managing an individual pending
case resolution. These include placement
in the community without conditions or
placement in the community with such conditions as determined to be necessary and
proportionate in the individual case. Immigration detention is included as the measure
of last resort to be used in exceptional cases,
provided the standards of necessity, reasonableness and proportionality have been met.
VII
Monitoring
Supervision
Surety and other consequences for noncompliance
Detention as a last resort
International human rights law and standards
make clear that immigration detention should
be used only as a last resort in exceptional
cases after all other options have been shown
to be inadequate in the individual case. The
use of confinement with people in an administrative procedure is highly controversial due to
its negative impact on health, wellbeing and
human rights. Detention should be avoided
entirely for vulnerable individuals and be in
accordance with international, regional and
national law and standards. This includes the
requirement that the standards of necessity,
reasonableness and proportionality have
been met in the individual case. Notwithstanding these serious concerns, detention is
included here to be used only as a last resort
for exceptional cases after a comprehensive process has determined before an independent judicial authority that all other options
will not address the identified concerns.
VIII
Conclusion
Dealing with irregular migration is an everyday
area of governance. As the Revised Handbook
shows, with effective laws and policies, clear
systems and good implementation, asylum
seekers, refugees and migrants can be
managed in the community in most instances.
Screening and assessing the cases of individuals subject to, or at risk of, detention enables
authorities to identify needs and introduce
appropriate supports and, as needed, conditions in the community. Through these
approaches, authorities can manage people in
the community in the majority of cases without
the financial and human cost that detention
incurs. The Revised Handbook shows costeffective, reliable and humane alternatives are employed in a variety of settings
to the benefit of a range of stakeholders
affected by this challenging area of policy.
Key findings
International human rights laws and standards make clear that immigration detention should be used only as a last resort in exceptional cases
after all other options have been shown to be inadequate in the individual case. This Handbook provides readers with the guidance needed
to successfully avoid unnecessary detention and to ensure community
options are as effective as possible. This edition presents the Revised
Community Assessment and Placement model (Revised CAP model)
alongside new and updated country examples. While the basic elements
of the original CAP model remain the same, the revised model separates
the overarching principles from the bureaucratic processes involved.
1. Introduction
1.1 Governing migration
The governance of migration is evolving in
response to changes in the patterns and
make-up of migrant populations. The number
of migrants crossing national borders has
increased over recent decades. 3 It is well documented that migration is associated with a
range of social and economic benefits for
destination countries as well as for those who
migrate. 4 Governments have recognised these
benefits by developing avenues to enable legal
migration for a variety of purposes including
employment, education, family reunion and
tourism. Regular migration flows through
these legal avenues far outweigh irregular
movement. 5 However, significant migration
does occur outside of legal channels. In 2010,
the International Organisation for Migration
(IOM) estimated 10-15% of the worlds 214
million migrants were undocumented, the
majority of whom had become irregular
after first travelling via legal avenues. 6
The regulation of migration is a core function
of modern governments, resulting in a
range of systems to govern the movement
of foreigners on a nations territory. Despite
the success of many of these systems in
managing large movements of people well,
some people have come to believe migration
is out-of-control. Such perceptions are often
linked to concerns about national security
and crime, job availability, and the erosion
of cultural identity and traditions.7 In these
situations, irregular migration can become
a point of contention and political debate,
making the regulation of migration a challenging and sensitive area of policy.
Although managing migration is a constantly
changing and complex task, it is an everyday
phenomenon and a normal part of operating
a government. All countries are facing the
There is no empirical
evidence to suggest
that the threat of being
detained deters irregular
migration
Several studies have been undertaken to
establish which factors most impact the choice
of destination of asylum seekers and irregular
migrants. 20 According to this research, the
principal aim of asylum seekers and refugees
is to reach a place of safety. 21 Most asylum
seekers have very limited understanding of
the migration policies of destination countries
before arrival and are often reliant on people
smugglers to choose their destination. 22 Those
who are aware of the prospect of detention
before arrival believe it is an unavoidable part
of the journey, that they will still be treated
humanely despite being detained, and that it
is a legitimate right of States if undertaken for
identity and health checks. 23 Rather than being
influenced primarily by immigration policies
such as detention, most refugees choose destinations where they will be reunited with family
or friends; where they believe they will be in a
safe, tolerant and democratic society; where
there are historical links between their country
and the destination country; where they can
already speak the language of the destination country; or where they believe they will be
able to find secure work quickly due to general
levels of prosperity. 24 One study also found
that the majority of refugees who had experienced detention did not pass on a message
of deterrence to people overseas as the relief
of escaping persecution and reaching a place
of safety overrode the trauma and sense of
rejection they had experienced as a result of
detention. 25 This evidence shows detention
has little impact on destination choices.
of self that subsequently affect integration. 36 These are discussed further below.
These affect a persons ability to live satisfying and productive lives and to develop
trusting relationships. Work, study, family and
friendships are all affected. Concentration and
memory are also affected by long periods in
detention, subsequently impacting language
acquisition and work or study outcomes. 37
1.3.3 Detention has been shown to
harm health and wellbeing
Another major concern is that the potential
impact of detention on the health of those
detained is so severe that its use as a message
of deterrence and control cannot be justified.
This is similarly the case with the use of
detention as a blanket response to groups
of migrants in particular circumstances.
Research has demonstrated that being in
detention is associated with poor mental
health including high levels of depression,
anxiety and Post-Traumatic Stress Disorder
(PTSD) 38 and poor quality of life. 39 One study
found clinically significant symptoms of
depression were present in 86% of detainees,
anxiety in 77%, and PTSD in 50%, with
approximately one quarter reporting suicidal
thoughts. 40 Further, mental health deteriorates
the longer someone is detained. 41 The impact
on children is particularly disturbing, especially as the consequences for their cognitive
and emotional development may be lifelong. 42 For adults, it has been found that the
debilitating impacts of detention extend well
beyond the period of confinement, especially
for those detained for prolonged periods. 43
Options that do not rely on confinement are all
the more important in light of this evidence.
Impacts such as these not only affect
the life experiences of former detainees;
they also create a greater burden on the
2. The case
for alternatives
2.1 Alternatives to detention defined
The term alternatives to immigration
detention (alternatives) does not have
an established legal definition, nor is it a
prescriptive concept. As a relatively recent
term, it is not defined in the same way
by all stakeholders. 47 Some stakeholders,
like the IDC, maintain an expansive definition that incorporates a range of options
available to a State to avoid detention. Other
stakeholders limit the definition of alternatives to conditions, such as reporting,
or to specific accommodation models.
The IDCs program of research reinforces
the benefits of an expansive definition of
alternatives. The IDC defines alternatives to
immigration detention (alternatives) as:
Any law, policy or practice by which
persons are not detained for reasons
relating to their migration status.
This definition strengthens and clarifies the
definition put forward in the first edition of
the Handbook. The language is simplified and
a wider range of people at risk of immigration detention is encompassed. In line with this
definition, this Handbook focuses on engagement, rather than enforcement, as the best
approach for developing effective and humane
systems for governing migration. It respects
asylum seekers, refugees and migrants as
rights holders who can be empowered to
work towards case resolution without the
need for unnecessary restrictions or deprivations of liberty or freedom of movement.
A more restrictive approach to alternatives
is often concerned with control rather than
engagement and collaboratively working
toward case resolution. More specifically, narrower definitions may overlook the
strengths of the existing range of everyday
policies or practices used to support and
manage people in the community. For
example, a majority of countries in South
America and the European Union do not
normally detain asylum seekers on arrival.
Instead, they protect and support them in
open reception centres in the community
while their claims for protection are processed.
These open reception centres are not generally
viewed by those States as an alternative to
detention, as they do not generally detain
asylum seekers. However, if applied in other
countries or applied in that country with a
different group of migrants then it would
be considered an alternative to detention.
Similarly, several countries only use detention
as an exceptional measure in a small number
of cases and/or for short periods. Their system
ensures most people remain in the community
with freedom of movement. Rather than identifying those people in detention who are
eligible for an alternative, these countries
only use detention as the last resort. Their
earlier options are not seen as alternatives to
detention, as detention has not been contemplated. However, they could be an alternative
for other States that do detain those people.
Failing to include such policies and practices
in this Handbook would unnecessarily limit
insights into the most effective models for
reducing the use of detention and restrictions on liberty in the first place. A broad
conceptual and practical approach to alternatives allows for wide-ranging discussions
and increases understanding of those policies
that reduce the need for detention and other
restrictions. By adopting this approach, we
hope to stimulate discussions about whether
people currently in detention really need to
be there, and whether existing systems for
managing people outside of detention can
are several benefits in restricting the application of detention and prioritising communitybased management options. Alternatives:
attendant hardship and vulnerability. 58 Alternatives that build trust in the fairness of the
immigration process can promote compliance as well as more efficient and sustainable immigration decisions. In turn, this can
improve final outcomes whether this is integration for those granted status or independent departure for refused cases.
The data on rates of compliance support these
general claims. The available data are most
substantive for those still awaiting a final visa
or status decision in their preferred destination:
10
Country
Australia
Cost of
Detention
Cost of
Alternative
(per person
per day)
(per person
per day)
AU$65572
AU$8.8073
to AU$3874
Austria
12075
17 to 2476
Belgium
180- 19077
90 to 12078
Canada
CA$17979
CA$10-1280
Hong Kong
n/a
HK$108 81
Indonesia
n/a
US$8 82
US$158 83
US$10.55 84
United
States
11
12
13
14
Are better able to comply with requirements if they can meet their basic needs
while in the community.
15
3. Community Assessment
and Placement: Introducing
the Revised CAP model
16
17
4. Liberty: Presumption
against detention
18
The research identified the following strategies to protect the right to liberty. These
strategies are strongest when established
in law; however, they can also be stated
in policy or established in practice. These
include laws, policies and practices that:
BOX 1
Countries that operate with a strong presumption of liberty for all persons include Argentina,
Brazil, Costa Rica and Venezuela. In these
countries, national laws strongly espouse
the principle of non-discrimination and do
not distinguish between nationals and nonnationals for the purposes of access to and
enjoyment of fundamental rights. Such
laws provide detention be used only as an
exceptional measure of last resort and/
or where necessary, and provide for alternatives to be used in the first instance.
ARGENTINA
detention orders can only
be issued as a precautionary measure before a final
immigration decision where
there is a risk of non-compliance with a deportation
order. Article 70 of Regulation 616/2010 provides that
detention orders can only
be issued for a maximum of
45 days to effect deportation where a removal order
has been finalised; within
this period, after the first 15
days of detention, immigration authorities must provide
a detailed report every ten
days to the courts justifying the extended detention
period.
19
BOX 2
20
Reporting at specified
intervals to the Polish
Border Guard;
Lodging a security
deposit, no lower than
twice the amount of
the minimum wage
stipulated by minimum
wage law;
Surrendering of travel
documents; and
Directed residence at a
location specified by the
authorities.
Croatia nominates several
alternatives to detention
in its national legislation,
which was introduced in
A presumption of
liberty is strongest
when established in law,
although it can still be
established in policy
or in the practice of
immigration officials
to not detain unless
necessary
Evidence of such consideration may be
required to be submitted when a detention
decision is being made or reviewed in
court. Where it is not articulated in law, a
presumption of liberty can still be established in policy or in the practice of immigration officials to not detain unless necessary,
as seen in Box 1 Argentina and Box 21
BOX 3
CHINA
21
22
Prevention
BOX 4
Case Resolution
The realisation of a sustainable migration
solution for the child and their family.
More details on CCAP can be found
in the IDC Publication Captured Childhood.
http://idcoalition.org/ccap
AGE ASSESSMENTS
23
BOX 5
Panama
Introduces a law to prohibit
the immigration detention of
children.
Indonesia
Belgium
Implements alternatives to
detention for children and
families.
2005
2008
2010
South Africa
Finland
Japan
Releases all children from
immigration detention and
establishes a policy to no
longer detain children.
United Kingdom
Announces it will end the
detention of children
24
2011
China
Malta
Turkey
2012
2014
France
2015
The Netherlands
Taiwan
Israel
Introduces a new law excluding children
from residence orders (a requirement to
reside at designated detention centres)
and directing authorities to place
unaccompanied minors and other specified
children into community settings.
25
BOX 6
APPOINTMENT OF A GUARDIAN
BOX 7
HUNGARY
26
unaccompanied or separated
child is identified, and to
maintain such guardianship
arrangements until the child
has either reached the age
of majority or has permanently left the territory. The
guardian should be consulted
and informed regarding all
actions concerning the child,
and should have authority to
be present in all planning and
decision-making processes
involving the child.135
5. Minimum standards
27
Ensuring fundamental
rights are respected can
support migrants to stay
engaged with authorities,
minimise secondary
movement and improve
the safety and security
of both migrant and local
populations
Argentina, Brazil, Costa Rica and Venezuela
strongly espouse the principle of non-discrimination and do not distinguish between
28
for basic needs, nor does it ensure their fundamental rights are respected, nor does it ensure
their fundamental rights are respected.
In some cases, individuals are able to provide
for their own needs through legal work. A
number of countries provide asylum seekers
with the right to work while their status is
being determined, as seen in Box 8 Spain,
Box 9 Chile and Box 21 Sweden. In the EU, the
Reception Directives requires Member States
to provide asylum seekers with an adequate
standard of living which guarantees their
subsistence and protects their physical and
BOX 8
SPAIN
29
BOX 9
30
VARIOUS COUNTRIES
is required to depart the
country. Individuals holding a tolerated document
have the right to work, are
required to report regularly to a territorial unit of
the General Inspectorate,
and must notify authorities of any changes to their
place of residence. They are
also required to reside in a
particular geographical area
and obtain approval to travel
outside of this area.157
In Turkey, stateless persons
who have been identified
are to be issued a Stateless
Person Identification Document. This grants the right to
legal residence and access to
health, education and legal
services.
Documentation underpins
successful alternatives to
detention and can serve
multiple purposes for
various stakeholders
31
32
33
BOX 10
REGULAR REVIEW
34
35
Legal obligations
Legal
Obligations
Vulnerability
Community
Context
Identity,
Health &
Security
Checks
Individual
Case Factors
36
BOX 11
ZAMBIA
37
38
BOX 12
39
tion to defend their claims before an independent body, with legal advice. The assessment of risk associated with migrants who
have completed a prison sentence is included
as an issue of character in Section 6.4.5.
Age
particularly unaccompanied
and separated minors.
6.3 Vulnerability
An assessment of vulnerability can ensure
management strategies are sensitive to the
particular needs of vulnerable individuals
and incorporate appropriate support. Such
an assessment can identify those individuals who require additional support to meet
their basic needs or undertake daily activities, as well as identifying those who require
extra assistance to understand and negotiate
migration procedures and to meet the conditions of their release. Particularly vulnerable individuals may have fewer personal
resources to cope with the detention environment and may be at higher risk of harm.192 In
some countries it has been established that
certain vulnerable individuals should never
be detained, as discussed in Section 4.4 .
Vulnerability assessments identify the ways in
which an individuals position in society places
them in an unequal relationship with others.
Work on this concept focuses on the contexts
that create vulnerability by framing assessments around what people may be vulnerable
to.193 However, most vulnerability assessments
currently in use identify certain categories of
people as being vulnerable based on particular
personal characteristics.194 For the purposes
of this report we will discuss four areas which
have traditionally been used to identify vulnerable individuals, as seen in Figure 3. These are:
Gender /
Diversity
Health
Protection
needs
6.3.1 Age
Vulnerability assessments should identify
those individuals whose age places them
in a position of vulnerability. Economic,
political and personal power in society is
often dependent on age. Elderly people who
are frail or no longer able to work are often
dependent on others to provide for their basic
needs.195 Policies in Canada 196 and China both
require that detention is avoided or used
as a measure of last resort for the elderly.
Similarly, children mostly rely on adults to
provide for their basic needs, and should never
be detained, as discussed in Section 4.4 .
Age
Gender / Diversity
Health
Protection needs
40
BOX 13
with obtaining medical attention. Such assistance can meet duty of care obligations while
also ensuring a persons ill health does not
interfere with their ability to meet the requirements of their placement in the community.
For instance, someone who is suffering from
a chronic illness may not be physically able
to maintain regular reporting requirements
despite a willingness to remain in contact with
authorities.198 Additional psychosocial factors
that impact wellbeing and create vulnerability include a serious breakdown in family
relationships, those experiencing violence
or abuse or children with serious behavioural problems.199 Countries that screen
and assess for health vulnerabilities include
Hong Kong (Box 14) and Australia (Box 16).
TURKEY
41
Intended destination
Family and community ties
Character including compliance to date
Belief in the process
6.4.1 Stage of migration process
42
Certain migrants
are at greater risk of
unnecessary, prolonged
or repeated detention
when they should instead
be placed in community
alternatives
Certain migrants are at greater risk of unnecessary, prolonged or repeated detention
when they should instead be placed in
community alternatives, including: stateless
persons; migrants whose countries of origin
or domicile are unable or unwilling to issue
travel documentation; migrants facing deportation to a country which is in turmoil due
to war, violent conflict or natural disaster;
and migrants who cannot be returned
due to a serious medical condition. 206
6.4.3 Intended destination
if they are in their destination country and
awaiting the outcome of a visa application, status determination or other legal
process. It stands to reason that absconding
is unlikely while there is a real prospect of
gaining legal status in a preferred destination, as remaining engaged in the process
43
44
Full and timely legal advice and case management throughout the process are key mechanisms to support this outcome. However,
some people will not have faith in the bureaucratic process they have been through, such
as if they know of a similar case that has
received a different outcome 215 or if they are
facing serious threats to life or liberty on
return that fall outside protection mechanisms. 216 In these cases, it is particularly
important that caseworkers and lawyers
recognise these concerns, by exploring all
options to remain in the country legally. If no
further options remain, it may be necessary
to explore alternative solutions, such as
removal to a third country, to a different
BOX 14
HONG KONG
45
46
available, and a referral process to subsequently place them in that measure. The key
is to streamline such processes with clear
identification and referral policies, practical
tools, information and multi-stakeholder
collaboration, as seen in Box 11 Zambia.
For governments interested in developing or
expanding community options, it is important
to assess at a systemic level what mechanisms
are already available in the community that
could be used to support and manage individuals outside of detention even if this is not
the current primary purpose of those mechanisms. For example, the expansion of national
child protection programs to include unaccompanied children, such as in Hungary (Box 7).
7. Case management
The majority of successful alternatives identified during this research rely on case
management to work towards case resolution, while maintaining high levels of compliance with conditions and restrictions while
in the community and improved health and
wellbeing. Case management centres on
understanding and responding to the unique
needs and challenges of individuals and their
context. Case management is designed to
empower individuals to resolve issues independently and link with additional supports
when needed. Case management relies on
identifying all the needs and strengths of
the individual; addressing those needs and
building upon the strengths as able with
available resources; and building resilience
in the individual to deal with the range of
47
standing and responding to the capacities, needs and challenges of individuals and
their context, including personal resources,
vulnerability, protection and risk factors.
48
Process
1.
Screening
5.
Case
Closure
Outcomes
2.
Assessment
4.
Intervention
Regu
3.
Case
Planning
la r R e vie
1. Screening
It is recommended that screening should
take place as early as possible, at the
time of irregular arrival, detection in
the community with irregular status, or
lodging of an asylum or protection claim.
Where an indication of vulnerability or
risk is present, the individual should be
referred for comprehensive assessment.
2. Comprehensive assessment
Following an indication of risk or vulnerability
during screening, assessment provides a basis
for further decision making. Through consideration of all systems and factors impacting
on the individual, a case manager can identify
and address issues regarding basic needs and
49
3. Case planning
Understanding the needs and priorities of
the individual, and the individuals understanding of their situation, may demonstrate
what action is needed to assist an expeditious case resolution. It may be legal assistance
to lodge a thorough refugee claim. It may be
counselling to deal with experiences of torture
or trauma. Information gathered throughout
the assessment process is therefore considered and analysed, goals set, prioritised and
action plans put in place. The case manager
and individual together develop a detailed
case plan, outlining necessary steps to reach
goals, suggested timeframes, and persons
responsible. Consideration and planning
for practical necessities such as housing,
health care, livelihood, social support needs,
reporting requirements and logistics is critical.
4. Intervention
The agreed case plan is implemented, and
should ensure communication, education,
advocacy and facilitation of appropriate
service involvement, assisting individuals to
maintain a link to immigration authorities. Full
engagement with the individual and all key
stakeholders is critical in resolving immigration cases and supporting vulnerable individuals: facilitating regular case conferences
can be a productive intervention. Using the
ongoing relationship between case manager
50
Early intervention
Face-to-face, one-on-one contact
Regular assessment and review
Confidentiality and information
management
BOX 15
51
BOX 16
52
AUSTRALIA
independently, 37 people
(7%) absconded, 33 people
(6%) were removed by the
Department and six people
(1%) died. 229 This equates to
a 93% compliance rate and a
60% rate of independent departure amongst refused applicants. The program cost a
minimum of AU$38 per day
compared with a minimum of
AU$125 for detention. 230 The
government has found that:
[d]rawing on appropriate
services and focusing on addressing barriers is proving
a successful mix for achieving sustainable immigration
outcomes.231
53
BOX 17
In the Netherlands, an NGOrun programme assists persons who have been issued
with a deportation order or
have overstayed their visa
to return to their country of
origin. 233 The program, which
runs for a minimum of 13
weeks, is based on the premise that people should be
empowered to prepare for
departure from the Netherlands, and that the coercive
environment of detention is
not conducive to overcoming real or perceived barriers
to return.
Coaches, or caseworkers,
build trust with individuals
54
THE NETHERLANDS
The program is mainly
government funded. It costs
6,000 EUR to assist an
individual to return (including all associated costs) the
equivalent of 30 days in
immigration detention. The
program acts as an alternative to detention because
the government undertakes
that participants will not be
detained and, in some cases,
people are released from detention to participate in the
program. As of September
2014, over half the people
enrolled in the program had
returned to their countries
BOX 18
BELGIUM
immigration processes. 239
There has been a high rate
of voluntary return and low
rates of absconding: from
October 2008 to August
2011, 217 families (including
396 children) were housed
at the units. 240 Of this group,
88 families returned to their
countries of origin or were
removed to a third country
under the Dublin Regulations. Almost all of these
(80) departed independently, with only eight forced
returns. Of the remaining 129
families, 69 were released
and 48 absconded (usually
within five days of arrival). 241
The average length of stay
was 24 days. 242
55
The United States established the T Non-Immigrant Status (the T Visa) for non-citizens who are survivors of severe forms of human trafficking.243 It extends protection to
such individuals, and allows them to remain in the country to assist in an investigation or
prosecution of human trafficking. The T Visa begins as a temporary four-year visa. After
three years of holding T non-immigrant status, the non-citizen can apply for permanent
residency. T Visa holders are given work rights and are eligible for the same federallyfunded benefits and services as refugees. Further, T Visa holders have some access to
family reunification, in order to protect family members at risk of reprisals by traffickers. 244
MOROCCO
ARGENTINA
Argentina has pursued a strong regularisation and legalisation strategy for managing
its substantial population of immigrants, most of whom originate from countries in the
region.245 It provides residence to any citizen of a Mercado Comun del Sur country
(which includes all South American states) who does not have a criminal record. It has
also legislated to provide temporary residence permits for people who are not be able
to return to their country of origin because of a natural or environmental disaster.246
Further, between 2007 and 2010, Argentina implemented the Patria Grande regularisation programme. This granted temporary or permanent residence to 560,131 people, thus
contributing to a decrease in unemployment and poverty.247 Legal migration has been
seen to benefit the economy and so irregular migration has largely been redirected into
the formal market through regularisation.
56
SWEDEN
Sweden conducted a regularisation program between November 2005 and March 2006,
targeting individuals who had been issued with final removal orders. This was initiated in
part due to heightened media attention over children from undocumented families who
were experiencing severe psychological problems caused by their irregular status. A total
of 31,120 applications for residence permits were processed, of which 17,406 were granted.
These were mostly issued to families with small children and migrants who had been issued
removal orders but could not be returned to their country. Factors such as length of stay in
Sweden, situation in their country of origin, criminal history and social and health circumstances were taken into consideration. 251
BELGIUM
Belgium launched a program in 2009 to regularise migrants who had been residing in the
country for at least five years. Applications were received between 15 September and 15
December 2009. Applicants had to demonstrate integration into Belgian society (through
language skills, attendance at literary courses or having children who were enrolled in
Belgian schools). The regularisation program also offered permanent regularisation to
asylum seekers whose applications had been pending for more than three years, and who
could produce an employment contract and regional labour card. Through this program,
11,016 regularisation applications were granted. 250
57
BOX 19
BOX 20
A reflection period is a
period of time in which the
trafficked persons can consider their options in a safe
environment, without risk
of being removed from the
country.254 Granting a reflection period to survivors of
trafficking is recognised as
a best practice and measure
that not only helps to protect
the rights of trafficked survivors, but also encourages
survivors to cooperate with
authorities in the prosecution of traffickers. 255
58
VARIOUS COUNTRIES
In the United States, individuals from certain countries that
have experienced devastating
natural disasters, civil war or
other conditions that temporarily prevent their citizens
from returning safely, may
be able to obtain Temporary
Protected Status (TPS). A
TPS provides the holder with
temporary permission to
remain in the US, and also
provides temporary work
authorisation. Once granted
TPS, an individual cannot be
detained and is not removable
during the designated period.
In order to qualify for TPS, an
individual must prove that s/
he is a national of a current
TPS designated country and
has been in the US since a
specified date.
EUROPE
judicial proceedings, (b) has
shown a clear intention to
cooperate, (c) has severed all
relations with the traffickers;
and (d) would pose no risk
to public order, policy or security. Holders of residence
permits should be able to
access standards of living
capable of subsistence, access to emergency medical
treatment, translation and
interpreting services, and if
provided for by national law,
psychological services and
free legal aid.
8. Placement Options
59
Private accommodation
Living with immediate family, friends or
relatives
Government-funded housing
Private housing funded by charities
Open reception centres for asylum seekers
Open centres for recognised refugees
Open refugee camps
Shelters run as part of humanitarian aid
Shelters for unaccompanied children or
separated children
60
61
BOX 21
62
SWEDEN
tary repatriation, escort by
caseworkers or transfer to
the authority of the police
(forced return). Incentives
are provided to those who
opt for voluntarily repatriation, including financial assistance, and travel arranged
by the caseworker and paid
for by the Swedish Migration Board. 259 Where there is
no risk of absconding, failed
asylum seekers are given
between 14 and 30 calendar
days to leave the country
independently. In 2012, 68%
of third country nationals ordered to leave the
country departed voluntarily or through an Assisted
Voluntary Return program. 260
Those who do not cooperate
with independent departure
options can have conditions
introduced including reporting requirements or reduced
benefits. 261 As seen in Box 27
, detention is only applied as
a last resort during deportation procedures in conditions
that support dignity and
wellbeing.
63
BOX 22
64
The immediate
revocation of the
Ministerial Decision
allowing for the prolongation of detention
beyond 18 months
GREECE
Monitoring
Supervision
Surety and other consequences
for non-compliance
Many alternatives integrate a number of these
mechanisms together with the minimum
standards of legal advice, basic needs, legal
status and documentation and case management to create effective management
programs in a community context. As detailed
in Regular review of placement decisions,
ongoing and regular assessments should be
conducted to re-negotiate or amend the use
of conditions and restrictions as a persons
circumstances change, to make sure they
are not unnecessary or disproportional. For
instance, reassessment of a case due to
non-compliance or a negative visa or status
8.2.1 Monitoring
Authorities often make use of monitoring
mechanisms to ensure that irregular migrants
remain in contact with authorities and can
be located to participate in the progress of
their migration case as required. 276 Monitoring mechanisms are designed to establish
and maintain a line of communication and
to keep track of an individuals whereabouts. Monitoring differs from supervision or
case management in that it does not provide
opportunities to communicate or to respond
to substantial matters such as changes in
65
66
Directed residence
Some governments direct individuals to live in
certain locations, leading to a de facto form of
monitoring. For example, migrants who require
shelter may be directed to live at a particular
migrant accommodation centre. In addition to
establishing a known address, such accommodation centres sometimes fulfil additional
monitoring activities by reporting absentee
residents to immigration authorities. Further,
some centres have immigration officers or
case managers located on-site, increasing
contact with migration authorities. Other
countries direct individuals to live in a certain
region or district within the country. This is
usually designed to distribute the burden of
social welfare across regional or local government areas. Examples of directed residence
can be found in Box 2 Poland and Croatia, Box
8 Spain, Box 13 Turkey and Box 18 Belgium.
67
8.2.2 Supervision
BOX 23
68
VARIOUS COUNTRIES
to report leads to a follow up
assessment; it does not automatically lead to detention.
If the assessment identifies
a high risk of absconding, a
decision to detain may be
taken.
United Kingdom - Asylum
seekers and irregular migrants are regularly required
to report either to local
Home Office offices or, more
rarely, to police stations.
Reporting requirements and
conditions are regulated in
the UK Home Office Guidance Reporting Standards
of Operational Practice. The
frequency of reporting varies
considerably, usually from
every day to once a month.
BOX 24
69
BOX 25
70
CANADA
individual complies with the
conditions of their release,
which may include, inter
alia, providing a nominated
address, handover of travel
documents, or reporting
requirements. In some situations, the money does not
need to be paid unless the
person does not comply
with the conditions of their
release. A bondsperson is often someone who knows the
detainee personally and is
confident in their willingness
to comply with authorities. 294
Several non-government organisations in Canada offer
to act as a bondsperson for
detainees who do not have
either the resources or family/community ties required
to make bail.
Maintaining minimum
standards can assist case
resolution as detailed in
Section 5
71
sive process has determined before an independent judicial authority that all other options
will not address the identified concerns.
If detention is to be used in accordance
with international law, several preconditions must be met. It must be:
Lawful
Necessary and reasonable in the circumstances
BOX 26
72
Philippines Section 13 of
the Department of Justice
Department Order No. 94,
series of 1998, provides for
the provisional release of
refugee applicants from
detention. 298 Through this
Department Order, detainees who seek asylum may
be released by order of the
Department of Justice. In
practice, the asylum seeker
is issued with a Certification
of Status in coordination
with UNHCR. This document
is sent to the Immigration
Commissioner to complete
and issue. The only condition is that the asylum seeker
agrees to follow the requirements of the Refugee Status
Determination process.
VARIOUS COUNTRIES
due to administrative or
logistical hurdles (such as
difficulty obtaining travel
documents or unconfirmed
identity and/or nationality)
or due to serious physical or
mental health concerns. The
individual is instead granted
with a temporary residence
status, together with work
rights (through Article 111 of
the Immigration Act).
South Korea has a provisional release visa which
provides authorities with
a discretionary avenue to
release migrants from detention. Established under
Article 65 of the Immigration
Control Act and its decree,
the visa can be issued with
consideration of the following factors: irreparable harm
to the detainee, possibility of
absconding and humanitarian concerns. 300
Alternative forms of
detention require an
extremely high threshold
before application
including a high level
of regulation and
independent oversight
These devices are attached to the persons
body, usually by being securely strapped
around the ankle. Some of these devices
use Global Positioning System (GPS) technology to be able to identify the specific
location of an individual at any given time.
Other devices require the person wearing the
device to be at a base unit at set times and
is used to monitor compliance with curfews.
All such forms of regulation are included
within this section on detention because they
substantially curtail freedom of movement
and liberty, and consequently require an
extremely high threshold before application. As with other forms of detention, they
require a high level of regulation and independent oversight, including prompt and
regular judicial review and monitoring.
73
BOX 27
74
SWEDEN
9. Conclusion
This Handbook has identified and described
laws, policies and practices that allow noncitizens to remain in the community with
freedom of movement while their migration
status is being resolved, or while awaiting
deportation or removal from the country. This
pragmatic approach was underpinned by a
human rights framework and a concern for
minimising harm but shaped by the legitimate concerns of government in terms
of compliance, timely case resolution and
cost. In taking such a broad approach, the
IDCs program of research has been able
to identify strategies to prevent unnecessary detention and reduce the length of time
someone is detained, while also outlining key
factors impacting the effectiveness of case
management programs in the community.
75
76
16. UN High Commissioner for Refugees. (2014). Beyond detention: A global strategy to support
governments to end the detention of asylum-seekers and refugees. Geneva: UNHCR. Available
at http://www.refworld.org/docid/536b564d4.html
77
Glossary
Term
Definition
Absconding
Alternative(s)
Any law, policy or practice by which persons are able to reside in the
to immigration
detention
(alternatives)
Alternative forms of
detention
Asylum seeker
Case management
Case resolution
Child
Compliance
Community
Conditions
78
Term
Definition
Deportation
The act of a State to remove a person from its territory after the person has
been refused admission or has forfeited or never obtained permission to
remain on the territory. A person may be deported to his or her country of
origin, habitual residence, or a third country.
In this Handbook, the term deportation is used synonymously with forced
removal and expulsion, unless otherwise indicated. It is noted that these
terms may have different usages and meanings under different national and
international laws.
Deprivation of liberty
Guardian
Immigration detention
Independent
departure
IOM
Irregular migrant
A migrant who does not fulfil, or no longer fulfils, the conditions of entry, stay
or residence within a State.
Migrant
Refugee
A person who fulfils the definition of a refugee in the 1951 Convention and
1967 Protocol relating to the Status of Refugees or any regional refugee
instrument. The recognition of refugee status is a declaratory act and the
rights of refugees are invoked before their status is formally recognised by a
decision-maker. For this reason, in this Handbook, unless specifically indicated
to the contrary and particularly where a distinction is necessary in relation to
case resolution, the term refugee includes reference to asylum seekers.
79
Term
Definition
Regularisation
Restrictions
Separated child
A child separated from both parents, or from their previous legal or customary
primary caregiver, but not necessarily from other relatives. These may,
therefore, include children accompanied by other adult family members.
Committee on the Rights of the Child, General Comment No.6 (2005),
Treatment of Unaccompanied and Separated Children Outside their Country
of Origin.
Stateless person
A person who is not considered as a national by any State under the operation
of its law. Article 1 of the 1954 Convention relating to the Status of Stateless
Persons. In this Handbook, the term stateless person also includes reference
to persons at risk of statelessness.
Trafficked person
Unaccompanied child
A child who has been separated from both parents and other relatives and is
not being cared for by an adult who, by law or custom, is responsible for doing
so. Committee on the Rights of the Child, General Comment No.6 (2005),
Treatment of Unaccompanied and Separated Children Outside their Country
of Origin.
UNHCR
Voluntary departure
80
81
Sweden;
Asia/Pacific
Thailand, Indonesia, Pakistan, Malaysia
Research Project #2
Consistent with the approach to IDCs 2011
Handbook, qualitative research methods
were utilized to explore the laws, policies
and practices employed by governments to
manage refugees, asylum seekers, stateless
persons and irregular migrants in the
community without resorting to unnecessary and damaging immigration detention.
Qualitative methods were considered most
useful in collecting the kind of information
required to fulfil the objectives of the research.
The following 20 countries were selected,
four from each of the following five regions:
the Americas, Asia-Pacific, Europe, Middle
East and North Africa, and South and
East Africa. Countries were chosen on the
basis that they were experiencing transit
82
South/East Africa
Uganda, Zimbabwe, Tanzania, Botswana
Americas
Brazil, Costa Rica, Ecuador, Mexico
Europe
Malta, Poland, Romania, Turkey
NGO (local or
international)
Government
International
body
Yemen
Morocco
Jordan
Egypt
Zimbabwe
Botswana
Tanzania
Uganda
Costa Rica
Mexico
Ecuador
Brazil
Turkey
Poland
Romania
Malta
Indonesia
Malaysia
Pakistan
Thailand
36*
10*
15*
18*
Country
TOTAL COUNTRIES
EXPERT
TOTAL
TOTAL INTERVIEWS
2
38*
10*
Other
71
83
84
Endnotes
1.
2.
Association for the Prevention of Torture, International Detention Coalition, and United Nations
High Commissioner for Refugees, Monitoring
Immigration Detention: Practical Manual, (APT
and UNHCR, 2014), <http://idcoalition.org/publications/monitoring-immigration-detentionpractical-guide/>; UN High Commissioner for
Refugees, Guidelines on the Applicable Criteria
and Standards Relating to the Detention of
Asylum-Seekers and Alternatives to Detention,
(Geneva: UNHCR, 2012).
3.
4.
5.
6.
<http://publications.iom.int/bookstore/free/
WMR_2010_ENGLISH.pdf>
7.
8.
9.
12.
85
of Migration Policies: Spains New Political Orientations, In New Directions of National Immigration Policies: The Development of the External
Dimension and Its Relationship with the EuroMediterranean Process, 2009, http://www.
euromesco.net/images/joint%20migration%20
report.pdf.
13.
14.
15.
16.
17.
18.
19.
For instance, the Australian Minister for Immigration stated: We already have the toughest
mandatory detention regime in the Western
developed world, yet people still come to
AustraliaSo I dont think mandatory detention
should be seen as a deterrent in Michael Owen
and Tony Barrass, Getting Tougher Wont
Stop Boats Says Chris Bowen, The Australian,
November 2nd, 2010. http://www.theaustralian.com.au/news/nation/getting-tougherwont-stop-boats-says-chris-bowen/storye6frg6nf-1225946353586
Edwards, Back to Basics (see n 17).
20. Heather Crawley, Chance or Choice? Understanding Why Asylum Seekers Come to the UK.
(London: UK Refugee Council, 2010); Kate Day
and Paul White, Choice or Circumstance: The
UK as the Location of Asylum Applications by
Bosnian and Somali Refugees, GeoJournal
56, no. 1 (2002): 15-26; Alan Gilbert and Khalid
Koser, Coming to the UK: What Do AsylumSeekers Know About the UK before Arrival?
Journal of Ethnic and Migration Studies 32, no.
7 (2006): 1209-1225; Tetty Havinga and Anita
Bocker, Country of Asylum by Choice or by
Chance: Asylum-Seekers in Belgium, the Netherlands and the UK, Journal of Ethnic and
Migration Studies 25, no. 1 (1999): 43-61; Thomas
Holzer, Gerald Schneider, and Thomas Widmer,
The Impact of Legislative Deterrence Measures
on the Number of Asylum Applications in Swit-
86
Detention Centres: A Cross-Sectional Questionnaire Study, Global Health Action 8 (2015), doi:
10.3402/gha.v8.28321.
40. Physicians for Human Rights et al., From persecution to prison, 5 (see n 38).
41.
87
88
71.
89
82. This figure is for shelters for unaccompanied refugee and asylum seeking children. This
includes rental of premises, weekly allowances,
security, supplies, and activities for the children,
but excludes health care costs and the initial
purchase of furniture and equipment. Email from
UNHCR Indonesia, 2015. On file with the IDC.
83. U.S. GAO, Improved Data Collection 19 (see n.
60).
84. ISAP program. U.S. GAO, Improved Data Collection 19 (see n. 60).
85. Interview during fieldwork by Robyn Sampson.
86. UK National Audit Office, Returning failed
asylum applicants, (London: The Stationary
Office, 2005) 44.
87. Given some costs are the same across these two
models (i.e. airfares and some staffing costs);
the comparison is demonstrated by comparing
the non-common costs (i.e. location, detention
versus counselling, allowances). This allows
for a conservative estimate of the costs to be
compared. Senate Legal and Constitutional
Legislation Committee, Additional Budget
Estimates Hearing: Immigration and Citizenship Portfolio, (2009) http://www.aph.gov.au/~/
media/Estimates/Live/legcon_ctte/estimates/
add_0809/diac/38.ashx
88. See Medical Justice, Review into Ending the
Detention of Children for Immigration Purposes:
Response by Medical Justice, (2010) quoted in
Edwards, Back to Basics (see n 17).
89. OBrien, Natalie, Asylum Compo Bill Tops
$16m, The Sydney Morning Herald, June 12 2011.
90. Ward, Long Term Health Costs (see n. 44).
91.
92. Coffey et al., Meaning and Mental Health Consequences (see n. 26).
93. Cornelis J. Laban, Ivan H. Komproe, Hajo B. P. E.
Gernaat, and Joop T.V.M. de Jong. The Impact
of a Long Asylum Procedure on Quality of Life,
Disability and Physical Health in Iraqi Asylum
Seekers in the Netherlands. Social Psychiatry
and Psychiatric Epidemiology 43, no. 7 (2008):
507-15; Susan Rees, Refuge or Retrauma?
The Impact of Asylum Seeker Status on the
90
that shows refugees mental health is significantly associated with current socio-political
circumstances: Matthew Porter and Nick Haslam,
Predisplacement and Postdisplacement Factors
Associated with Mental Health of Refugees and
Internally Displaced Persons: A Meta-Analysis,
Journal of American Medical Association 294,
no. 5 (2005): 602-12. For a discussion on the
importance of supporting health throughout
the assessment process, see Ignacio CorreaVelez, Vanessa Johnston, Joanne Kirk, and
Angeline Ferdinand, Community-Based Asylum
Seekers Use of Primary Health Care Services
in Melbourne, The Medical Journal of Australia
188, no. 6 (2008): 344-348; Sampson, CorreaVelez and Mitchell Removing Seriously Ill Asylum
Seekers (see n. 30).
107. This is discussed in more detail in Sections 7
Case management and 5.4 Legal advice. This
finding was evident in the United Kingdom,
Sweden, the United States, Australia, Belgium
and reinforced by the findings of Aspden, Evaluation of the Solihull Pilot (see n. 52); Edwards,
Back to Basics (see n 17); Field and Edwards,
Alternatives to Detention 45 (see n. 49); Fiske
and Kenny, Marriage of Convenience (see n.
103); Hotham Mission Asylum Seeker Project,
Providing Casework to Asylum Seekers at the
Final Stages: Discussion Paper, (Melbourne:
Hotham Mission, 2006), http://idcoalition.org/
paper-providing-casework-to-asylum-seekersat-the-final-stages/; Sullivan et al., Testing
Community Supervision (see n. 52).
108. Edwards, Back to Basics (see n 17) regarding the
Glasgow family return project. See also Jesuit
Refugee Service Europe, From Deprivation to
Liberty (see n. 69).
109. This was evident in Hungary, Hong Kong and
Spain. Unfortunately, there is very little data
establishing the effectiveness of community
management options in transit countries. Some
research points to the ways transit countries
are actually destination countries for many
people: it is a misconception that all or most
migrants crossing the Sahara are in transit to
Europe. There are possibly more sub-Saharan
Africans living in the Maghreb than in Europe
While Libya is an important destination country
in its own right, many migrants failing or not
venturing to enter Europe prefer to stay in North
Africa as a second-best option. Hein de Haas,
Irregular Migration from West Africa to the
Maghreb and the European Union: An Overview
of Recent Trends, In IOM Migration Research
Series, (Geneva: International Organization for
Migration, 2008) 9.
110. Field and Edwards, Alternatives to Detention, 51
(see n. 49).
91
113. The United Nations Office of the High Commissioner for Human Rights (OHCHR) has
developed a set of guidelines and principles
on human rights-based migration governance.
The fundamental premise of these guidelines
and principles is that all migrants, regardless of
their legal status, how they arrive at the border,
where they come from or what they look like,
are entitled to enjoy their human rights. See
OHCHR, Recommended Principles and Guidelines on Human Rights at International Borders,
(Geneva: OHCHR, 2015) http://www.ohchr.org/
Documents/Issues/Migration/OHCHR_Recommended_Principles_Guidelines.pdf
114. For relevant international standards relating
to detention: see International Detention
Coalition, Legal Framework and Standards
Relating to the Detention of Refugees, Asylum
Seekers and Migrants, (Melbourne: IDC, 2011);
See also Amnesty International, MigrationRelated Detention: A Research Guide on Human
Rights Standards Relevant to the Detention
of Migrants, Asylum-Seekers and Refugees,
(London: Amnesty, 2007) http://www.unhcr.
org/refworld/docid/476b7d322.html; UNHCR,
Detention Guidelines (see n. 2).
115. For a discussion of the human rights that
underlie this presumption against detention,
see Edwards, Back to Basics (see n 17) and
European Union Agency for Fundamental
Rights, Detention of Third-Country Nationals,
80-81 (see n. 47).
116. Ruben Giustiniani, ed. Migracin: Un Derecho
Humano (Migration: A Human Right), (Buenos
Aires: Prometeo, 2004); Cristina Zurbriggen
and Lenin Mondol, Estado actual y perspectivas
de las polticas migratorias en el MERCOSUR
(Current situation and perspectives of migration
policies in MERCOSUR), (Montevideo: FLACSO,
2010); Barbara Hines, The Right to Migrate as a
Human Right: The Current Argentine Immigration Law, Cornell Intl L.J. 471 (2010); Also the
government reports: Argentine Republic, Initial
Report Submitted by the Argentine Republic
under Article 73 of the Convention on the
Protection of the Rights of All Migrant Workers
and Members of Their Families, 4 August
2010, CMW/C/ARG/1; Informe Nacional de la
Repblica Argentina sobre la Implementacin
de los Compromisos emanados de la Cuarta
Cumbre de las Amricas (National Reports on
the Implementation of Commitments from the
Fourth Summit of the Americas), XLVII GRIC/
SIRG Ministerial, GRIC/Inf.1/07, 22 May 2007.
92
130. Terry Smith and Laura Brownlees, Age Assessment Practices: A Literature Review & Annotated
Bibliography, (New York: UNICEF, 2011).
93
94
164. Coffey et al., Meaning and Mental Health Consequences (see n. 26).
165. London Detainee Support Group, No Return,
No Release, No Reason (see n. 27). In addition,
airlines may refuse to accept deportees on
board if they are resisting deportation: Gibney
and Hansen, Deportation and the Liberal State,
(see n. 27).
166. UNHCR, Detention Guidelines: Guidelines on the
Applicable Criteria and Standards Relating to the
Detention of Asylum-Seekers and Alternatives to
Detention, (Geneva: UNHCR, 2012), http://www.
unhcr.org/refworld/docid/503489533b8.html
167. UNHCR and OHCHR, Global Roundtable on
Alternatives to Detention of Asylum-Seekers,
Refugees, Migrants and Stateless Persons:
Summary Conclusions, (May 2011) 31, http://
www.unhcr.org/refworld/docid/4e315b882.html
168. Rutgers School of Law - Newark Immigrant
Rights Clinic and American Friends Service
Committee, Freed But Not Free, 17 (see n. 53).
169. European Union Agency for Fundamental
Rights, Handbook on European Law Relating to
Asylum, Borders and Immigration, (Vienna: EU
FRA, 2014), 165.
170. In Germany, immigration and asylum authorities, border guards and the police are responsible for conducting an individual assessment of
the grounds for detention, and will file an application for detention of a third-country national
with the courts. The final decision to detain
can only be made by the court. See European
Migration Network, Synthesis Report for the
EMN Focussed Study, 25 (see n. 49).
171. Eleanor Acer, Living up to Americas Values:
Reforming the U.S. Detention System for
Asylum Seekers, Refuge 20, no. 3 (2004):
44-57; Vladeck, Stephen I. Boumedienes Quiet
Theory: Access to Courts and the Separation
of Powers. Notre Dame Law Review 84, no. 5
(2009): 2107-2150.
172. For a discussion of the issues facing stateless
persons see Equal Rights Trust Unravelling
Anomaly (see n. 33).
173. For an in-depth description of this program see
Edwards Back to Basics (see n 17); Field and
Edwards Alternatives to Detention, 85-89 (see
n. 49).
174. Edwards Back to Basics (see n 17).
175. Edwards Back to Basics (see n 17).
176. Email from the Director of the Toronto Bail
Project 30.07.2015. On file with the IDC.
177. European Union Agency for Fundamental
Rights, Handbook on European Law (see n. 169).
95
96
Government of the Hong Kong Special Administrative Region, undated). Also evidenced in
factors influencing decisions to release on bond:
Field and Edwards Alternatives to Detention,
206 UK and 225 USA (see n. 49).
210. Ccile Rousseau, Marie-Claire Rufagari, Dogratias Bagilishya, and Toby Measham, Remaking
Family Life: Strategies for Re-Establishing Continuity among Congolese Refugees During the
Family Reunification Process, Social Science &
Medicine 59, no. 5 (2004): 1095-1108; Brooke
Wilmsen and Sandra Gifford, Refugee Resettlement, Family Separation and Australias Humanitarian Programme, (Geneva: UNHCR, 2009).
211. This is a factor in decisions to release in the
United States (Box 12), Hong Kong (Box 14) and
Canada (Box 25). This is reinforced by claims
that it is easier, for the purposes of deportation,
to locate a person who entered a country legally
because of ongoing participation in established structures of society: Gibney and Hansen,
Deportation and the Liberal State (see n. 27).
212. As one study of recidivism amongst foreigners
found: The findings do not lend support to the
arguments that removable aliens pose a disproportionate risk of repeat involvement in local
criminal justice systems. Jennifer S. Wong,
Laura J. Hickman, and Marika Suttorp-Booth,
Examining Recidivism among Foreign-Born
Jail Inmates: Does Immigration Status Make a
Difference over the Long Term? Global Crime
(2015): 17.
213. As described in Section 2.5.2.
214. As described in Section 2.5.2.
215. Disparities in the adjudication of refugee and
visa cases is well documented. Alongside
regular training and review of decision makers,
legal advice for applicants is a key factor for
promoting accurate and consistent decisions
across decision makers: Jaya Ramji-Nogales,
Andrew I. Schoenholtz, and Philip G. Schrag,
Refugee Roulette: Disparities in Asylum Adjudication, Stanford Law Review 60, no. 2 (2007):
295(117).
216. Hotham Mission Asylum Seeker Project,
Providing Casework (see n. 107); Sampson,
Correa-Velez and Mitchell Removing Seriously Ill
Asylum Seekers (see n. 30).
217. Information in this break out box is from interviews and site visits, with further references as
noted. Detention policy has been influenced
heavily by decisions handed down in the cases
A, F, AS and YA v Director of Immigration
[2008] HKCU 1109 (CACV 314-317 of 2007, 18
July 2008) and Hashimi Habib Halim v Director
of Immigration [2008] HKCU 1576 (HCAL 139 of
2007, 15 October 2008). For a discussion, see
Daly, Refugee Law in Hong Kong (see n. 121).
97
241. Pieter Stockmans, Return Homes as an Alternative to Detention, Presentation at the Expert
Meeting on Detention in the Framework of the
Eastern Partnership Panel on Migration and
Asylum, Chisinau, Moldova. 26-27 March 2014.
242. UNHCR, Alternatives in Belgium 14 (see n. 238).
243. US Citizenship and Immigration Services
Questions and Answers: Victims of Human Trafficking, T Nonimmigrant Status. (Washington,
D.C: US Citizenship and Immigration Services,
2010).
244. Sarah Craggs and Ruzayda Martens, Rights,
Residence and Rehabilitation: A Comparative
Study Assessing Residence Options for Trafficked Persons, (Geneva: IOM, 2010) 67.
245. This information was provided to the International Detention Coalition by a regional expert,
with further references as noted.
246. UNHCR, High Commissioners Dialogue on
Protection Challenges: Breakout Session 1:
Gaps in the International Protection Framework
and in Its Implementation 8-9 December,
(Geneva: UNCHR, 2010) http://www.unhcr.
org/4d09e47a9.pdf
247. Foreign Ministry of Argentina, Informe elaborado
en cumplimiento de la A/RES/67/172: La
perspectiva de derechos humanos en el tratamiento de la cuestin migratoria en la Repblica
Argentina, (FMA, 2013).
248. P.A.R. Migration through Morocco: No Way
Forward or Back, The Economist, February 11th,
2014, http://www.economist.com/blogs/pomegranate/2014/02/migration-through-morocco
249. IRIN, Morocco: The Forgotten Frontline of the
Migrant Crisis, July 29th, 2015, http://allafrica.
com/stories/201507301776.html
250. Centre for Equal Opportunities and Opposition to Racism, Annual Report on Migration,
(Brussels: CEOOR, 2013) 118.
251. Isabelle Johansson, Particularly Distressing
Circumstances: Regularization and Employment
in Sweden, REGAINE Assessment Report (International Centre for Migration Policy Development, 2014) 17-18.
252. Article 2 of Act II of 2007 states that exile
means any person who is provided temporary
shelter and may not be returned to the country
of his/her nationality, or in the case of a stateless
person, to the country of domicile, for fear of
being subjected to capital punishment, torture
or any other form of cruel, inhuman or degrading
treatment, and there is no safe third country
offering refuge, and who is not entitled to
asylum or treatment as a stateless person, nor to
any subsidiary form of protection or temporary
protection.
98
270. Mana Rabiee, Greece pledges to shut immigration detention centers, Reuters U.S.,
February 14th 2015, http://www.reuters.com/
video/2015/02/14/greece-pledges-to-shutimmigrant-detenti?videoId=363197263
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